In the Matter of the Paternity of X.R., Stephen Reid v. Julie Bodkin (Hodges) (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 13, 2020
• Docket: 19A-JP-1962
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 13 2020, 10:57 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Matthew R. Lemme Lemme Law Offices New Albany, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of March 13, 2020 X.R., Court of Appeals Case No. 19A-JP-1962 Stephen Reid, Appeal from the Appellant-Petitioner, Floyd Circuit Court v. The Honorable J. Terrence Cody, Judge The Honorable Julie Bodkin (Hodges), Julie Fessel Flanigan, Magistrate Appellee-Respondent. Trial Court Cause No. 22C01-1011-JP-116

Kirsch, Judge.

[1] In this paternity action, Stephen Reid (“Father”) and Julie Bodkin (Hodges)

(“Mother”) are parents of a thirteen-year-old son (“Child”). Father and Mother

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 1 of 12 shared joint legal custody of Child, but upon Mother’s request, the trial court

awarded sole legal custody of Child to Mother. Father appeals, raising three

issues, which we consolidate and restate as:

I. Whether the trial court violated Father’s right to due process; and

II. Whether there was sufficient evidence to support the trial court’s decision to grant Mother sole legal custody of Child.

[2] We affirm.

Facts and Procedural History1 [3] Child was born on November 28, 2005, and on November 3, 2010, Father filed

a petition to establish his paternity over Child. Appellant’s App. Vol. 2 at 2.

Through mediation, Father and Mother agreed that they should share joint

legal custody of Child. Subsequent orders in 2015 and 2016 made some minor

changes, but the joint legal custody arrangement remained the same.

[4] In 2014 or 2015, Father was diagnosed with Attention Deficit Disorder

(“ADD”) and began taking both Adderall and Vyvanse for his condition. Tr.

Vol. 2 at 78-79. He took the medications for two or three years but stopped in

1 We remind Father’s counsel that Indiana Appellate Rule 46(A)(6)(a) requires that facts set forth in a brief “shall be supported by page references to the Record on Appeal or Appendix in accordance with Rule 22(C).” In Father’s twenty-seven-page brief, there are no citations to the Appendix and only five citations to the Transcript.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 2 of 12 2017. Id. Father planned to see a doctor about getting back on medication

because without the medication, he found it difficult to perform his job. Id. at

46, 79.

[5] Father and Mother were constantly at odds over how to parent Child,

disagreeing on both serious and trivial issues. They could not agree on which

school Child should attend. Id. at 11, 13. Mother did not approve of Father’s

use of corporal punishment on Child. Father would sometimes spank Child

with a belt, which left bruises and welts on Child’s buttocks. Id. at 17, 21-22,

38-39. This worried Mother and made her believe that Child needed to be

protected from Father. Id. at 21-22. Mother and Father also disagreed about

how closely Child should be supervised. Mother was upset that when Child

was at Father’s residence, Father would sometimes leave Child alone “for

extended periods of time.” Id. at 18; see also id. at 17, 19, 37, 51. Mother also

believed Father discussed topics with Child that were inappropriate, such as

drinking, “sexual things,” and details about the legal proceedings between

Mother and Father. Id. at 24-25. Mother and Father even disagreed about

what kind of haircut Child should get. Father was angry that Mother allowed

Child to get a haircut that was just a trim, so Father threatened to shave Child’s

head. Id. at 20-21.

[6] On August 8, 2018, Mother filed a Petition for Modification of Child Custody,

or in the Alternative, Motion for School Selection (“Petition to Modify

Custody”). Appellant’s App. Vol. 2 at 11. On May 15, 2019, about two weeks

before the hearing on Mother’s Petition to Modify Custody, Father’s mother

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 3 of 12 died. He had purchased his mother’s home about two years earlier, but he

resided elsewhere even after he bought the home. Tr. Vol. 2 at 45, 74. Once his

mother died, Father moved into the home, and his fiancé sometimes stayed

with him. Id. at 72-74.

[7] On May 31, 2019, the trial court conducted a hearing on Mother’s Petition to

Modify Custody. Appellant’s App. Vol. 2 at 14; Tr. Vol. 2 at 2. As of the date of

the hearing, Child was thirteen years old. Tr. Vol. 2 at 17. Also, as of the date

of the hearing, Father had pending charges for Level 6 felony stalking,

disorderly conduct, and driving while suspended.2 Id. at 21, 63, 76-77, 79-80.

Both Father and Mother testified that they could not communicate with each

other or make parenting decisions together. Id. at 10, 59.

[8] On direct exam, Mother’s attorney asked her if she was seeking sole legal

custody of Child. Mother said she was:

Q. Okay. So, given your inability to make joint decisions, your inability to communicate, you believe it’s in [Child’s] best interest that the Court grant you sole legal custody. Is that your court request?

A. That is my request.

2 The record is clear that Father had a pending charge for Level 6 felony stalking, but it is less clear about whether Father had pending charges for both disorderly conduct and driving while suspended or just had a pending charge for one of those two offenses. Tr. Vol. 2 at 75-79.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 4 of 12 Id. at 30. Father did not lodge any objection to Mother’s statement, nor did he

make any statement to contradict that Mother’s Petition to Modify Custody

sought sole legal custody of Child. Later, during Father’s testimony, Father’s

attorney noted that “[Mother] wants to change legal custody to herself . . . .”

Id. at 56. Father’s lawyer asked Father, “Is there anything else that you think

the judge needs to know about [that]?” Id. Father’s response merely gave

reasons why Mother should not be granted sole legal custody and did not

contradict that Mother’s Petition to Modify Custody had requested sole legal

custody. Id. at 57. At no time did Father’s attorney argue that Mother’s request

for sole legal custody was not properly before the trial court.

[9] At the conclusion of testimony, the trial court asked each party whether they

had been diagnosed with a mental illness and whether either of them was taking

medication for such illnesses. Id. at 72, 78-79. Neither party had raised these

issues during the hearing. Mother responded that she had no such diagnosis

and that she was not taking medication. Id. at 72. Father admitted that, in

2014 or 2015, he had been diagnosed with ADD and prescribed Adderall and

Vyvanse. Id. at 78-79. He stated that he went off the medication in 2017, but

he told the trial court that he wanted to see a doctor about getting back on the

medication because he was having trouble performing his job when he was not

taking medication. Id. at 79.

[10] After a brief recess, the trial court awarded sole legal custody of Child to

Mother, citing, among others, the following factors: 1) joint legal custody was

no longer appropriate; 2) Father had pending criminal charges, one for Level 6

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 5 of 12 felony stalking; 3) Father’s untreated ADD, which, Father admitted, made it

difficult to perform his job; and 4) Father’s grief from the loss of his mother. Id.

at 81-82, 84. As to Mother, the trial court found that she had a stable home and

a stable relationship with her husband. Id. at 82. On June 5, 2019, the written

order was issued and recited the same reasons as the ruling from the bench but

also mentioned Father’s housing situation as a reason to award sole legal

custody to Mother. Appellant’s App. Vol. 2 at 16.

[11] On June 28, 2019, Father filed a motion to correct error. Id. at 14, 20. On July

24, 2019, the motion to correct error was denied. Father now appeals.

Discussion and Decision [12] We first observe that Mother has not filed an appellee’s brief, and, as a result,

we have no duty to make arguments on her behalf. See Ind. Dep’t of Envtl. Mgmt.

v. Constr. Mgmt. Assocs., L.L.C., 890 N.E.2d 107, 111 (Ind. Ct. App. 2008).

Thus, if Father’s brief demonstrates prima facie error, we will reverse the

trial court’s judgment. See id. Prima facie error is error “at first sight, on first

appearance, or on the face of it.” Id. If Father fails to meet this burden, we will

affirm the trial court. See id.

[13] A party seeking modification of custody bears the burden of demonstrating that

the existing arrangement is no longer in the best interests of the child and that

there has been a substantial change in one or more of the enumerated statutory

factors. Bailey v. Bailey, 7 N.E.3d 340, 343 (Ind. Ct. App. 2014). We review a

custody ruling for an abuse of discretion. In re Paternity of Seifert, 605 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 6 of 12 1202, 1205 (Ind. Ct. App. 1993), trans. denied. We neither reweigh the evidence

nor judge the credibility of the witnesses. Id. We determine only whether the

record reveals evidence or reasonable inferences that serve as a rational basis for

the trial court’s ruling. Id.

I. Due Process [14] Father argues that the trial court’s ruling violated his right to due process in two

ways. First, he claims that in her Petition to Modify Custody, Mother did not

ask for sole legal custody of Child. Thus, Father argues, by awarding sole legal

custody to Mother, the trial court injected an issue into the proceedings that

Father was not prepared to litigate. Second, Father claims the trial court

interposed another issue into the proceedings that Father was not prepared to

litigate when the trial court, sua sponte, asked Father if he had been diagnosed

with a mental illness.

[15] In support of his first due process argument, Father cites Bailey, 7 N.E.3d at

344, where we held:

Longstanding Indiana law has prohibited trial courts from sua sponte ordering a change of custody. Rather, when such an important issue as the custody of children is involved, a modification generally can be ordered only after a party has filed a petition requesting such a modification . . . . An opportunity to be heard is essential before a parent can be deprived of custody.

Id. (internal citations omitted).

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 7 of 12 [16] However, while Father’s recitation of the law is accurate – as far as it goes - we

cannot confirm his allegation that Mother did not request sole legal custody of

Child because Father has failed to include a copy of Mother’s Petition to

Modify Custody in his Appendix. “In civil cases, an Appendix ‘shall contain ...

pleadings and other documents from the Clerk’s Record . . . that are necessary

for resolution of the issues raised on appeal.’” In re Marriage of Gertiser, 45

N.E.3d 363, 366 n.2 (Ind. 2015) (quoting Ind. Appellate Rule 50(A)(2)(f)).

“Appellants who fail to include the materials necessary for our review risk

waiver of the affected issues or dismissal of the appeal.” Cavallo v. Allied

Physicians of Michiana, LLC, 42 N.E.3d 995, 999 n.1 (Ind. Ct. App. 2015). Thus,

we find that Father has waived the issue of whether Mother’s Petition to

Modify Custody properly placed the issue of sole legal custody before the trial

court.

[17] Furthermore, we find Father’s due process argument unavailing. Even if

Mother’s Petition to Modify Custody did not raise the issue of sole legal

custody, Father consented to litigation of that issue. Issues raised by pleadings

“can be altered by the evidence adduced at trial where the parties have

impliedly or expressly consented to new issues being tried.” Bailey, 7 N.E.3d at

344. Here, Father did not object during Mother’s testimony where she

explicitly stated that she wanted sole legal custody of Child. Tr. Vol. 2 at 20.

Later, during Father’s testimony, Father’s attorney observed that “[Mother]

wants to change legal custody to herself . . . .” Id. at 56. Father’s lawyer asked

Father, “Is there anything else that you think the judge needs to know about

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 8 of 12 [that]?” Id. Father did not respond that Mother’s Petition to Modify Custody

had not requested sole legal custody, but he instead gave reasons why Mother

should not be granted sole legal custody. Id. at 57. Moreover, at no point did

Father’s attorney argue that Mother’s request for sole legal custody was not

properly before the trial court. Thus, Father consented to litigation of the issue

of whether Mother should have sole legal custody of Child. Father’s right to

due process was not violated.

[18] Father’s second due process argument is also unavailing. He claims the trial

court violated his right to due process by raising the issue of Father’s mental

health because, in doing so, the trial court inserted an unexpected issue into the

proceedings, which Father was not prepared to address. Father correctly

observes that neither he nor Mother presented evidence at the hearing related to

mental health. However, Father’s counsel did not object to the trial court’s

questions about Father’s mental health, so the issue is waived. See Tesfamariam

v. Woldenhaimanot, 956 N.E.2d 118, 122 (Ind. Ct. App. 2011). Waiver

notwithstanding, Father should have anticipated this line of inquiry because

Indiana Code section 31-17-2-8(6) requires a trial court to consider mental health

of all persons involved in a custody matter: “The court shall consider all

relevant factors, including the following: . . . The mental and physical health of

all individuals involved.” Id. (emphasis added). We also observe that after

eliciting testimony about Father’s mental health, the trial court invited Father to

pursue additional questioning, asking him, “[do] the [c]ourt’s questions bring

any questions that you want to follow-up on?” Tr. Vol. 2 at 79. Father’s

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 9 of 12 counsel raised no issues regarding the trial court’s questions. Thus, by raising

the issue of Father’s mental health sua sponte, the trial court did not violate

Father’s right to due process.

II. Sufficiency of Evidence [19] Father contends the evidence was insufficient to establish that: 1) he has

untreated ADD; 2) his housing situation is unstable; and 3) he is experiencing

more than ordinary grief from his mother’s death. Thus, he contends the

evidence did not support the trial court’s decision to grant sole legal custody of

Child to Mother. Even assuming Father is correct that the findings about his

grief and his housing situation do not support the judgment, we find that the

trial court’s decision to award sole legal custody of Child to Mother was

supported by other facts.

[20] Indiana Code section 31-14-13-6 provides that a trial court may not modify a

custody order in a paternity action unless (1) modification is in the child’s best

interests, and 2) there is a substantial change in one or more of the factors that

the trial court may consider under Indiana Code section 31-14-13-2. The

factors in Indiana Code section 31-14-13-2 include the child’s relationship with

the child’s parents, the mental and physical health of all individuals involved,

and evidence of a pattern of domestic or family violence by either parent. Id.

[21] Here, the trial court cited the following as substantial changes in circumstances

to justify awarding sole legal custody of Child to Mother: 1) Father’s untreated

ADD, which, Father admitted, made it difficult for him to perform his job; and

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 10 of 12 2) Father’s pending criminal charges, one of which was for Level 6 felony

stalking. Tr. Vol. 2 at 82. First, the evidence supported the trial court’s finding

that Father suffered from a mental illness and that the mental illness made it

difficult for Father to perform his job. Moreover, the trial court did not abuse

its discretion in citing both factors as substantial changes in circumstances that

justified a change of custody. Our Supreme Court has held that mental illness

may constitute a substantial change in circumstances that justifies modification

of custody. See Owen v. Owen, 563 N.E.2d 605, 608 (Ind. 1990) (former wife’s

deteriorating mental condition provided substantial evidence of change in

circumstances justifying change of custody to former husband). Likewise,

pending criminal charges can constitute a substantial change in circumstances

that justifies a change of custody. Cf. Walker v. Kelley, 819 N.E.2d 832, 838-39

(Ind. Ct. App. 2004) (where default judgment was entered for Father on his

motion for change of custody, Father’s pending criminal charges provided a

meritorious defense to Mother on her motion to set aside the default judgment).

[22] These changed circumstances also supported the trial court’s determination that

awarding sole legal custody to Mother was in Child’s best interests. Moreover,

other evidence also demonstrated that modifying custody was in Child’s best

interest. Father would spank Child with a belt, using enough force to leave

bruises and welts on Child’s buttocks, which worried Mother to the point that

she believed Child needed to be protected from Father. Tr. Vol. 2 at 17, 21-22,

38-39. By obtaining sole legal custody of Child, Mother alone will decide what

kind of discipline is appropriate, which supports the trial court’s conclusion that

Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020 Page 11 of 12 it was in Child’s best interest for Mother to have sole legal custody. Cf. Collyear-

Bell v. Bell, 105 N.E.3d 176, 184-85 (Ind. Ct. App. 2018) (in divorce case, trial

court did not abuse its discretion in modifying physical custody of child in favor

of the ex-husband based on evidence of ex-wife’s violence directed toward the

child; ex-wife had repeatedly beat child with a belt or a switch, and the most

recent whipping resulted in injuries to child). Accordingly, Father has failed to

show that the trial court abused its discretion in awarding sole legal custody of

Child to Mother, and thus, he has failed to demonstrate prima facie error.

[23] Affirmed.

Bailey, J., and Mathias, J., concur.

.

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